Not so dead on arrival

The unlikely success of the Clinton Roadless Rule

The Roadless Area Conservation Rule, which Bill Clinton signed into law eight days before he left office, protected 58.5 million acres of national forest land from logging and energy development. It was one of the boldest conservation measures in the history of federal land management, but it seemed doomed to a very short lifespan. Because it was only an administrative rule, it could be overturned by the next administration, which strongly opposed it.

But nearly eight years later, the Clinton Roadless Rule remains in effect for 35.6 million acres of national forest in seven Western states. Idaho has adopted, and Colorado is about to adopt, state-specific roadless regulations that fall short of the Clinton rule but still provide protection for large swaths of land. (Roadless lands in Wyoming and Utah are currently unprotected.) The Clinton rule's survival still hangs on the outcome of two ongoing court cases, but even if it were to succumb, it is likely that Democrats in Washington would replace it with either a new administrative rule or legislative protection for roadless areas. Thanks to the incompetence of the Bush administration and the tenacity of some never-say-die environmental lawyers, the long-shot maneuver might have worked.

The Forest Service first inventoried its roadless areas in the 1970s, after the 1964 Wilderness Act directed it to determine which of its lands were eligible for wilderness protection. Some of this land was preserved in a piecemeal fashion, through state-specific bills. But much of it stayed unprotected. The goal of the Clinton Roadless Rule was to systematically protect these remaining road-free lands without going through the arduous wilderness-designation process. More than 1.5 million people commented on the proposed rule, and over 95 percent of them were in favor.

The Bush administration at first thought it could get rid of the rule quietly, simply by not defending it against lawsuits from timber companies. "They didn't go about it very directly, at least not at the outset," says Mike Anderson of The Wilderness Society. "It was more of a subterranean strategy of trying to get the courts to take down the rule." It wasn't until 2005 that the administration launched a frontal assault, issuing a weaker replacement rule that required governors to petition the Forest Service to protect their states' roadless land. But the administration had done only a cursory environmental assessment of the new rule, leaving it vulnerable to legal challenge. In 2006, 9th Circuit District Court Judge Elizabeth LaPorte ruled that the administration had violated the National Environmental Policy Act in establishing the new rule. She overturned it and reinstated the original Roadless Rule. Her reinstatement stood until August of this year, when 10th Circuit District Court Judge Clarence Brimmer issued an injunction against the 2001 rule, saying, as he had in a previous injunction, that it also violated NEPA.

This left the nation's roadless areas in a curious legal position, with one judge saying that the 2001 rule was the law of the land and another judge of equal rank, but in a different judicial circuit, saying that it wasn't. To ease this tension, LaPorte has reduced the scope of her 2006 decision, limiting it to the 9th Circuit plus New Mexico until a randomly selected panel of three appeals judges rules on the validity of the decision. The three judges are all Republican appointees -- two of them appointed by George W. Bush -- so they may well reverse LaPorte's decision and reinstate the Bush rule. Even if LaPorte's 2006 decision withstands the appeal, Judge Brimmer's latest decision -- which is currently being appealed to the 10th Circuit -- could still undo the Roadless Rule.

But even if the Clinton Roadless Rule ultimately goes down in the courts, it has effectively protected the nation's roadless areas -- in which only seven miles of new roads have been constructed -- for the past eight years. "The Bush administration has basically blown it," says Craig Allin, professor of political science at Cornell College. "They have spent eight years trying to abolish the rule, and they have been so incompetent in their efforts that it's going to be left for the next administration."

Obama, who has expressed support for roadless preservation, could craft another administrative rule protecting most or all of the nation's roadless areas. The more difficult -- but more permanent -- way to protect roadless lands is through legislation. Even with Democratic majorities in the House and Senate, however, any bill would have to deal with the threat of filibuster. "If there are 60 votes in the Senate, a statute like that might very well pass," says Allin. "Without sixty votes, its chances are poor."

If such a bill does pass, the Clinton Roadless Rule will be remembered not just for buying time but also for changing the terms of the roadless debate. "It's completely changed the context of how we talk about these undeveloped areas," says Franz Matzner of the Natural Resources Defense Council. "Ten years ago, these places were just the places we were going to log next. Now, if someone wants to log a roadless area, they've got a fight on their hands, and they know it. People are recognizing that their forests have more to offer than just board feet."

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I find it curious that anyone can talk about the roadless area debate without even a mention of the impact of beetle kill. We are now faced with a whole new set of arguments to deal with and it would be useful to have a reasoned discussion before the fires start.

beetle kill and forest fires

Brian Majeski

Dec 16, 2008 07:48 AM

Larry,
You are correct, this does affect the situation and require additional discourse. However, to replenish these forests, fire is required. I have several friends in the forest service who can back this statement. Also, what are you going to do, log 80% of the beetle killed forest? Do you realize that beetle kill wood is non-structural ... you can use it for siding and furniture. The rest would sit and rot. I would advise some more research to back your point. So, maybe this is why they are not talking about this issue.

Beetle kill and end of natural forests

Ben Myers

Dec 16, 2008 09:35 AM

I'm concerned that a rush to proactively "clean up" beetle-killed forests could result in massive new road infrastructure, the harmful application of unproven science, and precedent for intensive, hands-on "tree farming" that then would become the norm.

In my experience, the Forest Service doesn't know the first thing about dealing with the beetle epidemic. I attended a public meeting on a local thinning/burning project where the local FS admitted that, with just a few years of try-try-again experience in that area, they're making it up as they go - on a massive scale.

Remember this hands-on, save-the-forest attitude was *responsible* for the current beetle kill situation by creating overcrowded, monoculture forests in the first place.

I realize that beetle kill represents both an enormous fire-hazard and loss of resource. I don't know what the full solution is, but only hope more of the salaried "experts" admit to same before charging out to undermine the forests of the next century.

Beetle kill result of climate

Jason Brown

Dec 17, 2008 10:47 AM

Beetle kill, from research that I have seen as of late, is due to the fact that the last couple winters have not been cold enough to cull their numbers. The result if massive infestations of the forest.

Amen on legislation

Steve Snyder

Dec 15, 2008 10:26 PM

The Roadless Rule, or to put it better, the need for roadless area protection, is very parallel to that of wilderness before the Wilderness Act.

Not a last minute rule!

Bert

Dec 17, 2008 10:36 AM

Though the 2001 Roadless Area Conservation Rule was signed into law only eight days before Clinton left office, it is important to remember that the rule was not rushed through. Quite the contrary:

The 2001 roadless rule came after years of deliberation including an unprecedented 1.6 million public comments — over 95% of which were in favor of the rule.

The rule has been preserved in no small part because of the broad support it has received from businesses, citizens, and organizations around the country. Once the rule is reinstated, it is crucial that the rule be strengthened and legislated so roadless protections do not exist at the whim of the next administration or judge.

Logging.. force to be feared? in 2008?

Lodgepole Lover

Dec 18, 2008 04:52 PM

"Ten years ago, these places were just the places we were going to log next. Now, if someone wants to log a roadless area, they've got a fight on their hands, and they know it. People are recognizing that their forests have more to offer than just board feet."
I can't speak for other states, but I am pretty shocked that the NRDC is still on the attack about "logging". Here in Colorado we wish we had a few more markets for dead lodgepole- either for wood products, or for energy to replace fossil fuels and improve the carbon situation.
In Colorado the debate has been about coal, skiing and oil and gas (both the 2001 and the current proposed Colorado rule put a moratorium on new leases allowing roads)and to some degree about fuels treatments (but mills are at capacity with dead trees near roads so it's not a need for commercial timber that's driving the desire for fuels treatments.)

And whether the Colorado Rule ultimately "falls short" of the 2001 Rule remains to be seen. Logically, the environmental protection in a roadless rule would be a function of # of acres protected, and the level of protections on those acres. Seems like we know neither of these at the current time for how Colorado will turn out.

The potential problem with a national rule or legislation is that it might help problems that individual States don't have, but more dangerously, NOT help problems that States DO have- because the problems will be characterized by national groups such as NRDC.